Malice Aforethought

When a crime is committed with “malice aforethought,” this means that the crime was premeditated, and the perpetrator held malice for the victim. Put another way, malice aforethought can be defined as a crime being planned in advance, with the intention to kill or grievously harm another individual. Originally, proof of malice aforethought was a requirement in certain jurisdictions in order to convict someone of first-degree murder. To explore this concept, consider the following malice aforethought definition.

Definition of Malice Aforethought


  1. The intention to commit a crime without just cause or provocation, particularly in cases involving first-degree murder.



What is Malice

The term “malice” refers to a person’s intent to injure or kill another person. Malice can either be “expressed” or “implied.” Malice is expressed when someone deliberately intends to take someone else’s life. Malice is implied when a person is killed, yet no proof exists that the killer was provoked. Implied malice may also exist when a crime is committed by someone who is said to have a “depraved” or “malignant” heart.

In several types of cases, the element of malice must be proven in order to convict a defendant. For instance, malice is often an element in crimes involving arson. This is because arson is a deliberate crime, in that the perpetrator intends to start a fire. Malice becomes an important element to prove if the fire causes the death or injury of someone else. In civil cases, significant damages can be awarded if the element of malice is successfully shown.

Intent to Kill

“Intent to kill” is another way of saying malice aforethought, or mens rea. Mens rea is a Latin term that refers to a defendant’s intention to commit a crime, as opposed to the actual crime itself. Mens rea is concerned only with the defendant’s mindset, not with his ultimate actions.

An intent to kill does not need to be specifically expressed by the killer. It can be inferred based on the killer’s actions. For example, malice aforethought can exist if someone shoots another person with a gun. However, just because someone shoots another person, that does not mean that he necessarily had an intent to kill. Perhaps he was just trying to defend himself, or to stop the person he shot from harming someone else, and he accidentally killed that person in the process.

It is up to a jury to decide whether there is enough evidence to support the theory that a defendant had an intent to kill. Proof of intent to kill may lie in the type of bullets the killer used, or even the accessories that can attach to a gun, such as a silencer.

Depraved-Heart Murder

A depraved-heart murder is a killing that occurs as the result of the killer showing an extreme disregard for human life. For instance, someone can be charged with a depraved-heart murder if he, in a fit of rage, shot at the ceiling of his apartment, killing someone on the floor above him. While he didn’t intend to kill anyone, he acted with such disregard for human life that he can be convicted of a depraved-heart murder.

The depraved-heart murder concept is often seen being argued in cases involving driving while intoxicated (“DWI”), or driving under the influence (“DUI”). The argument is that the driver was too intoxicated to form an intention to kill anyone, so an intent to kill therefore does not exist.

Felony Murder

For a murder charge, it is often enough to prove that a defendant had an intent to kill another person, but instead killed someone else – the victim in the case at hand. This is often seen in drive-by or public shootings. In this case, the defendant is typically charged under the felony murder rule. The felony murder rule does not require that an intent to kill be proven in order to convict the defendant of murder.

The felony murder rule holds that, if someone is killed while a felony is being committed, then the person who is committing the felony can also be charged with murder. Types of felonies that invoke the felony murder rule include such acts as burglary, robbery, kidnapping, and rape. Typically, in order for someone to be convicted of felony murder, the victim’s death must have been a direct result of the felony being committed.

For example:

While Nick is robbing a convenience store, he holds his hand in his jacket pocket, threatening to shoot the store clerk if he doesn’t cooperate. This scares the store clerk so badly, he trips and falls, hitting his head. The clerk later dies from the head injury.

Although Nick didn’t intend to kill anyone – indeed he didn’t even have a real gun – the clerk died as a direct result of Nick’s commission of robbery, which is a felony. Nick can be charged with felony murder.


The definition of manslaughter varies, depending on the jurisdiction. However, manslaughter can be divided up into the following six categories:

  • Voluntary Manslaughter – Voluntary manslaughter occurs when a defendant is provoked strongly enough to kill someone in the heat of passion.
  • Involuntary Manslaughter – Involuntary manslaughter is the killing of someone without malice aforethought, or an intent to kill.
  • Constructive Manslaughter – Constructive manslaughter occurs when someone kills someone unintentionally, but while committing another crime. This differs from felony murder because the crime committed does not have to be a felony.
  • Criminally Negligent Manslaughter – Criminally negligent manslaughter, or criminally negligent homicide, occurs when someone dies as the result of another person’s negligence, such as reckless driving.
  • Vehicular Manslaughter – Vehicular manslaughter, also called “intoxication manslaughter,” is the act of killing another person with a car and/or while under the influence of drugs and/or alcohol.
  • Assisted Suicide – Assisted suicide refers to the act of helping someone commit suicide. The person assisting with suicide may be a layperson, though this charge is usually leveled against a physician. That person or physician can then be charged with manslaughter for assisting in the person’s death.

Malice Aforethought or Premeditation

Malice aforethought is often thought to be the same thing as premeditation. However, premeditation is more narrowly defined than malice aforethought. For example, malice aforethought is more broadly defined than premeditation, which refers to a predetermined plan to commit murder.

An intent to kill may be actual or implied. An actual intent to kill refers to a situation wherein the defendant deliberately wanted to kill another person. An implied intent to kill refers to a situation wherein the defendant either wanted to cause the victim significant bodily harm, or acted with a blatant disregard for the victim’s safety, which ultimately resulted in the victim’s death. Malice aforethought can occur in situations of either actual and implied intent to kill.

The prosecution must prove one of four mental states existed at the time of the death, in order to effectively prove the defendant had malice aforethought. Those mental states are:

  • The intent to cause death
  • The intent to inflict great bodily injury
  • The intent to commit a felony
  • A demonstrated “depraved indifference” to human life

For example:

Sam is on trial for charges of having committed a depraved indifference murder. He can only be convicted of this crime if the prosecution can prove that he was aware – at the time of the murder – that he knew his actions carried a high risk of causing serious bodily harm, or death, to another person. He must have ignored those risks and engaged in the action anyway.

If Sam was unaware of the risks, he cannot be convicted of murder, no matter how unreasonable his lack of awareness may be. It may be possible to charge him with a different crime, such as manslaughter. This knowledge of the risk associated with the defendant’s actions is what separates a “depraved indifference” murder from, say, manslaughter.

Malice Aforethought Example Involving a Robbery

An example of malice aforethought occurred on June 3, 1993, when Edward Hartman shot Herman Smith in the back of the head, at close range. Hartman had been living with Smith at the time, and had believed Smith to be wealthy. Robbery was therefore considered Hartman’s motive for the murder. Afterwards, Hartman was arrested and confessed to the crime. Hartman was subsequently indicted, and the charged crime was listed as “murder.” Written into the indictment was the following passage:

“The jurors for the State upon their oath present that on or about the date of offense [sic] shown and in the county named above the defendant named above unlawfully, willfully and feloniously did of malice aforethought kill and murder Herman Larry Smith, Sr. This being in violation of G.S. 14-17.”

(Emphasis added.)

On May 4, 1994, a hearing was held wherein the State made it clear to Hartman that it sought to convict him of first-degree murder, with the belief that the murder was premeditated. Further, if Hartman was to be convicted, then the State would seek the death penalty, based on at least one factor: the murder was committed while Hartman was trying to rob Smith.

Hartman made a motion to dismiss the indictment before trial, based on the argument that the indictment had failed to allege all of the proper elements of a first-degree murder. Hartman’s motion was denied by the trial court, and he was convicted, by a jury of his peers, of first-degree murder. Hartman was ultimately sentenced to death.

On appeal, Hartman once again challenged the constitutionality of the indictment. The North Carolina Supreme Court rejected his argument. Hartman appealed once again, this time to the United States Court of Appeals for the Fourth Circuit. The Court, however, affirmed the decisions of the lower courts, stating the following in its opinion:

“Prior to 1893 any intentional and unlawful killing of a human being with malice aforethought, express or implied, constituted murder punishable by death. … [the] statute has not given any new definition of murder, but permits that to remain as it was at common law. The statute merely selects from all murders denounced by common law those deemed most heinous by reason of the mode of their perpetration and classifies them as murder in the first degree, for which a greater punishment is prescribed.

“In view of these authorities, it is abundantly clear that under North Carolina law, there is only one common law crime of murder, which by statute is divided into two degrees. Accordingly … [an] indictment that alleges the elements of common law murder is sufficient to satisfy the demands of the Sixth and Fourteenth Amendments.”

(Emphasis added.)

Related Legal Terms and Issues

  • Arson – A crime wherein an individual deliberately sets fire to his or someone else’s property.
  • Conviction – A formal declaration that a defendant is guilty of a crime, made either by a jury’s verdict or a judge’s decision.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Felony – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
  • Indict – To formally accuse or charge someone with a serious crime.
  • Indictment – A formal charge or accusation of a serious crime.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.